https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/523

REPUBLIC OF KENYA IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MUTOMO CIVIL CASE NUMBER E039 OF 2021 ESTHER KATUKU ROBERT……..………..PLAINTIFF/RESPONDENT -VERSUS- JOSEPH MUIMI MWIKYA…………..………DEFENDANT/APPLICANT RULING 1. I have before me a Notice of Motion dated 4th November, 2025 taken out by the Defendant. The motion is brought under section 1A, 1B Civil procedure Rules Order 21 Rule 12 (2) and Order 22(1), Order 45 Rule 1 and Orders 51 Rules (1) and (3) Civil Procedure Rules 2010. 2. The Application is premised on the grounds expressed on its face which are supported by the Affidavit of **Joseph Muimi Mwikya** sworn on 4/11/2025. The Applicant seeks the following Orders; 3. *Spent* 4. *That there be stay of execution of this court’s decree dated 25.6.2025 herein and any other consequential Orders pending the hearing and determination of this Application.* 5. *That the Defendant be allowed to pay the decretal amount due under the decree by installments of* ***Kshs. 25,000/=*** *per Month until full settlement.* 6. *That costs of this application be provided for.* 7. The application is opposed vide grounds of opposition dated 8th December, 2025 and filed on an even date. APPLICANT’S CASE 1. The applicant admits that he owes the Respondent a sum of Kshs. 223,616/= and has expressed his wish to settle the aforesaid sum in monthly installments of kshs. 25,000/=. The Applicant deposes that he has several other decrees from this court and other courts annexed as JMM1, JMM2 and JMM3 which he is unable to settle at once. Finally, he alleges that the respondent shall not suffer any prejudice should the court grant the orders sought. 2. In his written submissions dated 24/3/2026 the Applicant maintains that by dint of **Order 21 Rule 12 (2)** this court has wide and unfettered discretion to order settlement by installments. He takes the view that the proposed monthly installments of kshs. 25,000/= is reasonable as at will take six months to fully settle the decretal sum. 3. In answer on whether the firm of **Kinyua Musyoki & Co. Advocates** is properly on record and/or has audience herein, the Applicant has cited the case of Speed wall ***Building Technologies Limited –vs- County Government of Migori(2018) eKLR***. He then argues that he did not take over the matter from **Kimondo Gachoka & Co. Advocates** as he did not file a notice of change of advocates but an appointment of advocate to mean he acts jointly with the firm of Kimondo & Gachoka. **Respondent’s Case** 1. In her grounds of opposition dated **8/12/2025** the respondent opposes the application on **17** grounds. They principally raises issues that: the firm of Kinyua Musyoki & Co advocates is improperly on record and lacks audience herein; the court has no jurisdiction by dint of being *functus officio*; that applicant has recourse to invoke indemnity from his insurer under S.10(1) insurance( Motor Vehicles Third Party Risks) Act; and that the applicant has not demonstrated grounds for court exercise discretionary power to order payment by installments as well as that the applicant has not discharged burden of proof of his allegations as required by **S. 107** Evidence Act. ***ANALYSIS AND DETERMINATION*** 1. Parties were directed to file written submissions to the application. On 10/12/2025 the Respondent indicated that she will not file submissions and wishes to rely entirely on her grounds of opposition. 2. I have considered the Application, the grounds of opposition as well as applicant’s submissions. The principal issue for determination are thus; 3. *Whether the firm of Kinyua Musyoki is properly on record and/or has audience herein* 4. *Whether this court is functus official* 5. *Whether the applicant has established grounds for grant of the orders of payment by installments.* 6. **Whether the firm of Kinyua Musyoki is properly on record and/or has audience herein?** 7. . The Respondent maintain that the firm of Kinyua Musyoki & co. Advocates have no audience. His argument is premised that no leave was sought for him to come on record and no consent was entered into in that regard. 8. The Applicant contend that there was no notice of change of advocate filed but, maintains that he joined in the suit to act jointly with the firm of Kimondo & Gachoka Co. Advocates. Thus, he argues he has audience. 9. The Applicant essentially invokes Order 9 Rule **9** Civil Procedure Rules- which states: **“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—** **(a)upon an application with notice to all the parties; or** **(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.** 1. I have considered the above Rule and the case of **Speed Wall Buildings Technologies ltd (Supra).** The record of the court does not indicate that the firm of Kinyua Musyoki & Co Advocates filed a notice of change of advocates. I am thus persuaded that the seeking of leave and/or filing of consent contemplated by Order 9 Rule 9 was not mandatory. The said firm is thus properly on record and has the requisite audience to prosecute the present application. **Whether this court is functus official** 1. The Respondent argues in her grounds of opposition that this court is being invited to grant a stay of execution for second time- which jurisdiction lacks as it is *functus official*. She further advances that order of stay of execution of a judgment are only granted once. According to her, such a decision is final and conclusive. She adds that finality extends to warrants of attachment and sale in execution of decree. The case of Supreme Court of Kenya of **Shollei –vs- Judicial Service Commission (2023) KESC 89 (KLR)** was cited in support of the arguments. 2. I appreciate that the present application is post judgment. Judgment herein was delivered on **25/11/2024**. There is no indication that stay of execution was issued at that time of delivery of Judgment or any other time thereafter. It is thus the first time this court is being called upon to consider the issue of stay of execution. Thus, the issue of this court being functus official cannot be sustained herein. Suffice to say that even if, as alleged by the respondent, that stay had been considered by the court, the present Application is principally on settlement by installments and which this court is considering for the first time. (c ) **Whether the applicant has established grounds for grant of the orders of payment by installments.** 1. I now turn to order **21 Rule 12 (2)** Civil Procedure Rules which grants a court discretionary power to allow settlement of installments; it states: - **After passing of any such judgment or decree, the court may on the application of the judgment-debtor and with the consent of the decree-holder or without the consent of the decree-holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit”** 1. The factors that a court has to consider in an application for settlement of a decree by installments were set out in **Rajabali Alidina –vs- Remtulla Alidina & another 1961 EA 565**; they include; - 2. *The circumstances under which the debt was contracted* 3. *The conduct of the debtor* 4. *His financial position* 5. *His bonafides in agreeing to pay a fair proportion of the debt at once.* 6. I will proceed to consider this matter upon guidance from above principles. The debt herein accrues from a claim arising from a road traffic accident in which the defendant’s motor vehicle was blamed and a Judgment issued against him in favour of the Respondent/Plaintiff. I appreciate that it is not a contractual debt that one would have entered into and foreseen or reasonably expected to know it shall be due at a definite time in future. 7. Having taken into account how the debt accrued, I proceed to consider the conduct of the debtor. In this regard, I note that he has expressed willingness to settle the decretal sum to the last coin- given an opportunity to settle by installments. To me, this demonstrates an element of good faith on part of the applicant. 8. As to his financial position, the applicant alleges that he has several other decrees pending before this court. A fact that was demonstrated by annexing decrees in Mutomo MCCC **60 of 2018** (Kshs 483, 702); Mutomo MCCC **165 of 2016** (Kshs. 540,000?=) and Mutomo **E038 of 2021** (Kshs. 89, 548). He thus deposes that he is unable to settle in lump sum and invites court to grant him an opportunity to settle in installments as no prejudice will be suffered by respondent since payment in full will take not more than six (6) months. 9. it is not lost on this court that a decree holder is entitled to enjoy the fruits of his judgment. I also note that there is no demonstration by way of affidavit evidence of what sort of prejudice- in terms of enjoying the fruits of her judgment- that the respondent shall suffer if the decretal sum is settled through installments. 10. The Respondent has in opposition to allow payment by installments argued that the applicant have legal option of indemnity from his insurer. This supposition may hold water. However, the execution herein has been sought against the applicant- and it is within his right to seek redress as he has. I thus do not find merit in this argument. **Disposition** 1. In conclusion, I find merit in the Notice of Motion dated **4th** **November, 2025** and is allowed in the following terms; - 2. **THAT** a stay of execution of Judgment dated **28/11/2024** and decree dated **25/6/2025** be and is hereby issued. 3. **THAT** the Defendant/Applicant be and is hereby allowed to settle the decretal sum by monthly installments of Kshs. **25,000/=** with effect from the date of this judgment- till payment in full. 4. **THAT** in the event of default of payment of any monthly installment, execution shall issue. 5. **THAT** the Defendant/Applicant shall have the costs of this Application. Ruling delivered virtually on **12th August, 2026-** in the presence of: 1. **Miss Msafari** for Plaintiff/ Respondent 2. **Miss Kiroko** for Defendant/ Applicant 3. **Daniel**-Court Assistant. **Hon. L.K. Mwendwa** **Senior Principal Magistrate**